NLRB’S Office of General Counsel Issues New Advice Memorandum on Social Media

The NLRB’s General Counsel’s Office’s approach to employer social media policies and the discipline of employees pursuant to such policies has been a frequent topic of this blog. In fact, just last month, I called on both the NLRB and employers to take a step back from the rhetoric on this controversial topic. Yesterday, the NLRB’s General Counsel’s Office issued another Advice Memorandum (dated April 21, 2011), which again addresses the social media topic but this time upholds the employer’s discipline of an employee for posting offensive tweets on Twitter. In Lee Enterprises, Inc., d/b/a Arizona Daily Star the charging party was the public safety reporter for the Arizona Daily Star newspaper in Tucson. The newspaper had no social media policy, but began urging its reporters to begin using social media, including twitter. In early 2010, the charging party posted a tweet that ridiculed a headline in the newspaper’s sports section. He was called into a meeting with the human resources director, who encouraged him to discuss any concerns he had rather than tweeting about them. About a week later, he met with the managing editor, who “prohibited [him] from airing his grievances or commenting about the Daily Star in any public forum. The charging party then refrained from tweeting about the newspaper itself, but in August and September 2010, he tweeted the following:

September 10 – “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”

September 10 – “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”

September 14 – “[FOIA Exemptions 6, 7(C)].”

September 15 – “[FOIA Exemptions 6, 7(C)].”

September 19 – “My discovery of the Red Zone channel is like an adolescent boy’s discovery of h…let’s just hope I don’t end up going blind.”

Finally, on September 21, Tucson area television news station posted the following tweet on its Twitter feed: “Drug smuggler tries to peddle his way into the U.S.” The Charging Party saw the tweet, reposted it on his Twitter site, and tweeted the following: “Um, I believe that’s PEDAL. Stupid TV people.”

When the television station took issue with this response, the Daily Star’s managing editor again called him into the office and this time told him that his tweets were inappropriate and that he was to refrain from any tweeting until she had had an opportunity to meet with the executive editor and human resources. In prohibiting him from tweeting, the managing editor noted that the charging party’s Twitter screen name and biography referenced that he worked at the Daily Star and had a link to the Daily Star’s website, she considered this to be a work Twitter account, and that he was drawing negative attention to the Daily Star when he made the various tweets about homicides in Tucson. The charging party promptly changed his screen name, deleted some of his supervisors from his list of followers and changed his account settings so that he had to approve anyone before they could view his tweets. Later in September, the charging party was advised of his termination. He also told a couple of co-workers to be careful about what they write on Facebook and Twitter.

The charging party then filed a charge with the NLRB contending that he was disciplined pursuant to an unlawful rule that prohibited certain Section 7 activities. The General Counsel’s office disagreed and recommended that the charge be dismissed. In reaching this conclusion, the General Counsel’s Office noted that The Daily Star did not implement an unlawful rule. Though the General Counsel’s Office acknowledged that “in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7, he also noted that those statements did not constitute orally promulgated, overbroad “rules.” Instead, the statements were made solely to the Charging Party in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new “rules.” For example, after the Human Resources Director had met with the Charging Party and warned him to stop making inappropriate comments, and the Charging Party persisted, the Managing Editor called him in and warned him to stop airing his grievances or commenting about the Employer in any public forum. And after the Charging Party persisted in writing his offensive messages, the Managing Editor told him that he was not allowed to tweet about anything work related. Finally, the Charging Party’s termination letter refers to the fact that he was told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.” The General Counsel’s Office stated that “although the statements arguably constituted unlawful restrictions on the Charging Party’s own Section 7 activities, it would not effectuate the purposes and policies of the Act to issue a complaint where the statements were directed to a single employee who was lawfully discharged.”

With respect to the actual discipline and termination of the charging party, the Advice Memorandum states:

We have found no case in which the Board held discipline pursuant to an unlawful rule to be unlawful where the underlying conduct was itself unrelated to protected, concerted activity. In this case, even if the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct. The Charging Party’s conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment. Specifically, after opening a Twitter account and linking it to the Employer’s website, the Charging Party began tweeting inappropriate comments. The Employer warned the Charging Party that his comments were inappropriate, but he ignored the warning and continued to post additional inappropriate tweets while covering his beat as a public safety reporter. Those tweets included: “What?!?!?! No overnight homicide? WTF? You’re slacking Tucson” and “[Exemptions 6 and 7(C)].” The Charging Party’s discharge did not violate the Act because he was discharged for this misconduct, which did not involve protected activity.

The NLRB’s General Counsel’s Advice Memorandum in Lee Enterprises injects a bit of fresh air into the social media controversy. Here, the Advice Memorandum correctly puts the employer’s discipline of the employee in a proper context. Clearly, there was no effort on the employee’s part to grieve about working conditions and there was no effort on his part to involve other employees in such a grievance. In addition, the employer in this case certainly had the right to protect its reputation from its employee’s inappropriate tweets. As a result, the Lee Enterprises Advice Memorandum should be viewed as positive news and hopefully is a sign that cooler heads will prevail in this controversy.

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